'Insubordinate' Articling Student Dismissed For Cause

A lawyer in British Columbia has lost his wrongful dismissal case against a law firm that fired him for insubordination. The employee had articled for less than 3 months when he was dismissed for cause (although the employer gave the employee 2 week’s pay in lieu of notice). The main complaints of the employer were that the articling student believed he was entitled to take a full hour of lunch every day out of the office, and that he engaged in a debate over whether he should be required to complete many work assignments. The employee was also highly confrontational with lawyers and staff.The case is called Gichuru v. Smith.Reasons
The Court begins by citing the usual test for wrongful dismissal:

Absent a fixed term contract or contractual notice provision, it is an implied term of an employment contract that an employer may dismiss an employee at any time by giving the employee reasonable notice or payment in lieu. However, if the employer shows cause, the employee may be dismissed without notice or payment in lieu

Wilful disobedience can be a ground for immediate dismissal. Madam Justice Southin’s judgment in Stein v. British Columbia (Housing Management Commission) 1992 CanLII 4032 (BC CA), (1992), 65 B.C.L.R. (2d) 181 (C.A.) has been cited many times on this point. Madam Justice Southin wrote (highlighting the contextual nature of the inquiry), at pp. 185-186:I begin with the proposition that an employer has a right to determine how his business shall be conducted. He may lay down any procedures he thinks advisable so long as they are neither contrary to law nor dishonest nor dangerous to the health of the employees and are within the ambit of the job for which any particular employee was hired. It is not for the employee nor for the court to consider the wisdom of the procedures. The employer is the boss and it is an essential implied term of every employment contract that, subject to the limitations I have expressed, the employee must obey the orders given to him.It is not an answer for the employee to say: “I know you have laid down a rule about this, that or the other, but I did not think that it was important so I ignored it.”But it may be an answer, on the question of whether disobedience is repudiatory, that the employer so conducted himself that the reasonable man would conclude, and the employee did, in fact, conclude, that the employer considered the rule of little or no importance.

Applying this legal test to the fact, the judge ruled that the law firm has cause to dismiss the articling student for insubordination:

I find that [the employee] was insubordinate. He did not accept that Mr. Smith [the employer] had the right to determine how HS&C and the business of the firm were to be conducted. When Mr. Smith told [the employee] what he expected in terms of [his] availability to do the work [he] was hired to do, [the employee] rejected it as unreasonable and unfeasible and expected Mr. Smith to justify what he was asking [the employee] to do before [he] would do as instructed. But it was not for Mr. Smith to justify work terms to [the employee].

The employee was warned at a meeting that his behaviour was unacceptable, and the judge finds that the employee’s attitude and behaviour did not subsequently change:

Despite having been warned at the April 18 meeting that his conduct was unacceptable, apart from April 19 (when he stayed at the office, “feeling miserable”), I find that [the employee] did not alter his behaviour. [The employee] does not dispute this. When Mr. Smith again attempted to reach [the employee] over lunchtime, he could not. Although it was a very serious step, I find that, at that point, Mr. Smith was justified in terminating [the employee’s] employment. In my view, [the employee] had demonstrated quite clearly by his conduct that he found the working conditions Mr. Smith set for him to be unacceptable and that he would not accept them. I conclude that [the employee’s] behaviour was such that the employment relationship could no longer viably subsist.

Issues for DiscussionThe ‘implied term’ in employment contracts requiring employees to do as they are told, without debate, is a carry over from old Master and Servant laws. Judges have reasoned that, in exchange for their wages, employees have impliedly agreed to subject themselves to the commands of the employer. Do you agree with that reasoning? Would the employment relationship change if the implied duty to obey employers orders were removed from the common law of employment?In this case, the employee argued he should have a right to take a lunch break during which he is not interrupted by demands from his boss. The employer reminded him that the Employment Standards Act doesn’t apply to articling students. Do you think that the ESA should apply to articling students? Should the law require articling students to be paid overtime, and receive regular lunches and other breaks?

Professor Doorey is an Associate Professor of Work Law and Industrial Relations at York University. He is the Director of the School of HRM at York and Director of Osgoode Hall Law School’s executive LLM Program in Labour and Employment Law and on the Advisory Board of the Osgoode Certificate program in Labour Law. He is a Senior Research Associate at Harvard Law School’s Labor and Worklife Program and a member of the International Advisory Committee on Harvard University’s Clean Slate Project, which is re-imaging labor law for the 21st century

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